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An employment dispute already marred by its “unfortunate history”, which includes tension with the solicitors for one side, has ended due to a failure to properly conceal material that was protected under legal professional privilege.
Judge Douglas Humphreys of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) was forced into the “difficult position” of permanently staying claims made by Timothy Yeates against his former employer, Swire Shipping.
The matter’s four-day hearing was abandoned on day one after it became clear that Yeates could access two emails that were the subject of legal professional privilege (LPP). That privilege had been upheld by an FCFCOA registrar just weeks earlier.
Judge Humphreys was informed that it related to settlement negotiations and concerned one witness’s state of mind.
The redactions were revealed with an Adobe application.
“Now, it is legal practice ‘101’ that, when sending documents, one should always convert them to PDF to ensure that, where amendments have been made, those amendments cannot be accessed through the ‘view and edit document’ function.
“In this case, regardless of whether the disclosure was intentional or inadvertent, the material was capable of being accessed,” Judge Humphreys said in his written reasons.
Had Yeates been represented, a breach of LPP would ordinarily result in orders for the return of privileged documents and the requirement that new legal representation be engaged.
Instead, Judge Humphreys was left with only two “very limited” options: to either grant the permanent stay or refuse it.
This was made even more difficult by Yeates’ refusal to produce evidence in affidavit form of what LPP material he had seen.
“In circumstances where I cannot be satisfied that no privileged material beyond that already identified has been accessed, and where the applicant denied the opportunity to provide sworn evidence addressing that issue, I cannot be satisfied that no further access occurred,” Judge Humphreys said.
Judge Humphreys also noted the “unfortunate history” of the matter, which he said was marked by a “significant degree of dispute between the applicant, who represents himself, and the solicitors representing the respondent”.
“Although I am dissatisfied with how this matter has been conducted, and consider that there has been an egregious fault on both sides, together with an exchange of correspondence that has been most unseemly, I am nevertheless required to determine the course to be taken,” Judge Humphreys said.
Citation: Yeates v Swire Shipping Pty Ltd [2026] FedCFamC2G 1643.
